Tuesday, January 13, 2009

Army Trial Judiciary issues new-Article 120 Benchbook guidance

One of the many reasons to maintain the ability to post anonymously is that anonymous posters sometimes provide very helpful information. Here's an anonymous post from earlier today:

On 4 Dec the Chief Judge of the Army approved this definition for addition in the Army Bench Book for Art 120 Agg Sexual Assault and Abusive Sexual Contact.

("Substantially incapacitated") (and) ("Substantially incapable") mean(s) that level of mental impairment due to consumption of alcohol, drugs, or similar substance; while asleep or unconscious; or for other reasons; which rendered the alleged victim unable to appraise the nature of the sexual conduct at issue, unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise unable to make or communicate competent decisions.


Anonymous said...

Once again, the Army is carrying the mail for the other services. What is the justification for having the other JAG components anyway?

Anonymous said...

To get them in and out of Texas.

Anonymous said...

What is a "similar substance?"

Anonymous said...

Any other intoxicant, such as my world-famous charm...

Dew_Process said...

4 December????

It's not a bad instruction other than using the term "alleged victim" versus [Insert Name of complainant].

Cloudesley Shovell said...

This is just a straightforward rewriting of Art. 120(t)(14)(B) into language members can understand.

It's interesting that Congress decided to define "substantially incapacitated" not directly, but inferentially as the negative of consent. Such an approach is directly contrary to the stated goal of rewriting Art. 120 to get rid of consent as an issue.

Socrates said...

Since I am who I am, I must ask the provocative question: what is "consent" when it comes to sex?

Can an inherently non-verbal, non-act, be adequately described in words?

The law says that I "consent" to the government reading my e-mails. Why? Because I placed myself in that position. (And anybody with a philosophical bent knows where I can go with the "put yourself in that position" string)

As adults, and as observers of real human nature, we know that human beings don't really "consent" to sex. That reduction is an artificial construction. Sex is too complicated. Often one partner initiates sexual contact, with the other disinterested. There are degrees of interest in sex. To use our "burdens of proof" anlogy, are courts asking for a "beyond a reasonable doubt - I really 99% WANT sex" standard; or will they accept a "preponderance - ok, I'll do it tonight - 51%" standard. And if you buy my analogy, how many men are getting convicted because the woman was hovering around the 48th percentile in her sexual interest?

Sex is also a relatively wholistic experience, too. We usually don't break sex down into discrete moments, like the Zapruder film, as courts do.

I am convinced that many, many women are raped - and the perpetrator unjustly escapes.

But I also know that a disturbing number of men are convicted of rape under very dubious circumstances. I don't think its fair to attempt to "balance the scales" by manipulating the law.

In military law, I think there is too much pussy-footing around on the issue of consent. Perhaps lawyers are gun-shy due to political correctness. But anybody that has dealt with these cases knows that the issue to contend with is "ambiguous consent / misunderstanding" combined with "morning after regret."

The usual scenario involves a discovery by the helpful roommate, or some other interloper, converting what would otherwise be an unreported event into a rape investigation.

The underlying problem is the double-standard that we apply to women in the armed forces. At times, women servicemembers are role-models of a new sexless future - bold, brave, aggressive - ready for deployment - able to shout orders and be leaders of men.

But, when back in the barracks room, the law suddenly transforms these women into 18th century handmaidens - completely helpless against the advances of their male colleagues.

The new Article 120 is a hodgepodge marriage between male chauvinist chivalry and feminist puritanism.

But that's not right. Women servicemembers are not civilians. Doesn't Parker v. Levy apply to them, too? Aren't servicemember women now part of a unique military culture with its own culture and obligations?

Military women have an affirmative duty to immediately report incidents of sexual abuse which should surpass any (non) duty of civilian women.

If anything, military law should impose a rebuttable presumption that any sexual assault that is not self-reported within a set number of hours after sexual intercourse does not constitute a sexual assault.

Many CAAFlog commentators frequently post that the primary purpose of military law is to achieve good order and discipline. They are usually the "law-and-order" types. If so, a clear-cut burden to self-report sexual assault would remove many borderline cases from the docket - with all of its controversy and distraction - and get military judges out of voyeuristic sexual-refereeing and get the military back to the business of fighting wars.

Anonymous said...

Anon 22:19

Isn't the new Art 120 mess the fault of some "smart" folks in the Army? Not sure that you're great at "carrying the mail for the other services" either - just got my Christmas package yesterday.

Anonymous said...

First, isn't the bench book supposed to derive from statute or case law, rather than creating law itself? Second, doesn't this definition of an element, and it's reference to "communicate competent decisions," look awfully simililar to Article 120(t)(14)'s definition of consent? "[C]onsent means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. . . ." Note the reference to competence in both! Problem?

Anonymous said...

This will open the floodgates.

How many times, per year, has eveyone here heard the standard E-1 through E-5 female complaint:

"I was drinking with him, and I have have given him head before. We were kissing, and he took my pants off. I said yes, then no, then yes, then maybe, then no. I told him to take it out and I had to ask twice. My husband may find out, so I want him charged with rape."

This rewrite means her drinking the two 40s makes it rape.

Anonymous said...

I would assume the first poster is aware that the Army is the executive agent for the Benchbook and that changes are coordinated with all the services....

Bridget Wilson said...

I find myself at a loss on how to reply to some of these posts. As defense counsel I have dealt with many individuals accused of sexual assault, rape etc. I can see why these posts are anonymous. There are plenty of legitimate issues to discuss about the "new" 120, consent, etc. Too bad they aren't showing up here.

Socrates said...

Bridget Wilson,

Your post is full of exasperation, but lacks any substance. Don’t walk away in such a huff.

Why are you “at a loss”? Yes, some of the comments, including mine, have some chauvinistic edge to them…but please be a grownup and rebut them. To repeat my position, I am convinced that a greater number of females are unfairly victimized by men rapists than the comparatively smaller number of males who are falsely convicted of rape. Nevertheless, I still think the law is being unduly manipulated under the new 120 to “even the scales.” There are clearly a huge number of clear-cut rapes each year – man bad / woman innocent – and nobody should doubt that.

But I also agree with Anon at 09:11’s PiC comment (with a bit of parody thrown in) that I HAVE seen the type of report he alludes to. No joke. I’ve read the “yes, maybe, no, ok, no…oh-no, what if my husband/boyfriend finds out” investigations. I think you are conflating the stupidity of the comments with the stupidity of the women involved in these cases. Again, a small percentage, but no consolation to the men falsely convicted.

Your comment: “As defense counsel I have dealt with many individuals accused of sexual assault, rape etc” just ends, with you putting nothing on the table. Did you ever have a male client you thought was innocent of rape in a similar barracks situation, or not? Did you successfully defend your client?

I’m sorry I’m giving you attitude. I just think your comment comes across as trying prevent a discussion about sexual assault from actually discussing the nitty-gritty of real SEX. It’s a dirty business, but you can’t hide behind lofty statutory language of 120 to get out of what we are really dealing with here. Art 120 – despite its lofty (or obtuse) language – deals with often dumb & drunk people having messy sex.

Bridget Wilson said...

O.K. Socrates, you show me yours and I will show you mine, put forth your identity Mr. Frank and Upfront Contributor.

I had thought that the better part of valor in this circumstance would be to ignore the inflammatory post. After I stopped laughing, trust me, anyone who knows me will tell you that I am not afraid to talk about sex I changed my mind. But, I have chosen not to be wise.

Most of my clients in sex assault cases have been men accused of assaulting other men. Most of those clients have been gay. It goes like this, the guys have some drinks, then the "straight" guy is fellated by the gay guy. Someone finds out, or the "straight" guy is afraid someone will find out and runs to NCIS/CID to complain he was taken advantage of by that evil homosexual who forcibly fellated him to orgasm. He felt so helpless [usually a Marine] that was afraid to stop the alleged perpetrator from the "assault".

My client is charged with forcible sodomy or indecent assault. Win? Not much.

Then, we have the porn boys, who periodically appear having been lured by some guy who offers them what seems a lot of money to a LCPL to be in " Barracks Glory Holes, Part ..."

And I have represented with better success a few men accused of assaulting women. I am happy to shred on the stand a female who is trying to send Snuffy up the river because of her Axis II disorder.

But wait, were we telling war stories or something else?

At my age, talking about sex may be the most fun I can have with it. But, I think that is a topic for another forum. Now that I have engaged in the CAAFLOG equivalent of using four letter words in front of the guys in the new command so they won't be afraid of offending me by cussing, I will let you have at it.

John O'Connor said...

Small world, Bridget Wilson. We proscuted a porn case back in probably 1997 that involved a Navy corpsman appearing in, yes, Barracks Glory Holes 2.

A chief from the Naval Hospital was browsing the porn titles and saw the corpsman on the box cover. We thought it was odd that the chief copped to looking at box covers from the Barracks Glory Holes series.

Anonymous said...

The Chief was just taking care of his own. Ones gotz to keep an eye out in all the wrong places for misconduct of his troops, even if that means frequenting the Bunny Ranch or the alternative lifestyle equivalent.

Socrates said...

Bridget, touche. Good post. And good points about the often overlooked gay sexual assault cases. I understand your position much better now than your previous brief post implied. (And I should be careful, I picked a pseudonym that makes me susceptible to the gay-tutor-of-Greek-boys charge...but you resisted!)

Anonymous said...

Prior comment:
It goes like this, the guys have some drinks, then the "straight" guy is fellated by the gay guy.

My response:

I had a fair number of these when I was an MP before I went to college and law school. I spent a year doing nothing but LE work, and I myself would have to go to at least one per month.

A good sized chunk would go to ACFSC and directly to the commander rather than the blotter. They were also the worst scenes, lots of crying and screaming and we would usually cuff up both--not because we were scared for us but because we would concerned they would self harm.

That is just a bad situation. Sitting in an office or courtroom arguing about it is a lot better time than being there.

John O'Connor said...

Anon 2027:

I guess that's like when the Oakland Raiders were in the Super Bowl and John Matusczak was out in the bars in New Orleans until all hours during Super Bowl week. He explained that he had to go to all those bars and be up late so that he could monitor them and make sure none of his teammates were out carousing on such an important week.